Sir Thomas More Lecture 2023: “Human Rights – Universalism in Retreat?”

On 25 October 2023, Judge Angelika Nußberger, the former Vice-President of the European Court of Human Rights, gave the annual Sir Thomas More lecture in the Great Hall at Lincoln’s Inn, entitled “Human Rights – Universalism in Retreat?”

In the lecture, Judge Nußberger discussed the elusive character of the Universal Declaration of Human Rights, the  equal and inalienable rights of the human family, models of exclusion and inclusion, loss of trust in hard cases, the dire need for universal standards, and potential solutions.

You can download a pdf of the lecture here and read an excerpt below:

Universality of human rights in times of crisis?

Do you also have that feeling? On a daily basis we are confronted with pictures of war and
unimaginable brutality. One piece of bad news follows another. It’s as if the world is about to go
down a slippery slope. Everything is in motion, but it is not a forward or upward movement, as
we have always deluded ourselves with our belief in progress. Rather, it is a vortex that is
pulling us downwards.

On 10 December this year, we celebrate the 75th anniversary of the Universal Declaration of
Human Rights. We celebrate it as we see it as a “common standard of achievement for all
peoples and all nations”. Thus the preamble states. The “Universal Declaration of Human
Rights” has the word “universal” in its title and is linked to the belief that the “faith in
fundamental human rights, in the dignity and worth of the human person and in the equal rights
of men and women” is common to all.

But are human rights still universal today? Or are they part of the vortex that pulls down our
most basic convictions together with the hope of having learned from the mistakes of the past?

In search for the starting point: the elusive character of the Universal Declaration of Human Rights

Old-fashioned words?

Let’s start with the words.

When you look for the text of the Universal Declaration of Human Rights on the internet you will
find different versions, among others the original one, a simplified one and a discrimination
sensitive one, the latter one at least in German.

So, what should be our starting point for what is universal? Is it the original text and thus
something historical, but perhaps not understandable for all? Or is it a very simple and short
message re-prepared for us? Or is the original text deficient and has to be repaired and adapted
to the needs and convictions of today?

Depending on how one answers these questions, different conceptions of what is universal
become visible: on the one hand it could be understood as something that comes into being at a
certain historical point in time but is then unchangeable and eternal, on the other hand it could
be understood as something that is context-bound and that we always have to reinterpret or
even rewrite for our needs.

Obviously, there is no consensus on this question.

Let’s take as an example the first article of the Universal Declaration of Human Rights, which
contains descriptive elements that characterize the image of “all human beings”, but which
contains also normative elements explaining how human beings should be:

“All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.”

The expression “endowed with” is replaced in the simplified version by the word “have” – “they
have reason and conscience”.

At first sight we might think it is the same. But the word “endowed with” carries with it the idea of
a woman’s “dowry”, i.e. of something saved in the family and passed on to the daughter in order
to enable her to live a good life and, potentially, to pass on to others what she has received.
When we talk about “having something” we do not know where it comes from; it is just there,
without any responsibility. The idea of passing on, of receiving and giving is lost. And – you will
all have in your mind the famous words of the American Declaration of Independence which are
implicitly cited here: “We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness.”

So, should we simplify? Or should we uphold the historical heritage conveyed with the specific
wording elaborated in a long and quite painful drafting process? The word “endowed” appeared
only in the third draft, figures there for some time with the addition “endowed by nature” before
the final version is approved. It meaningfully changes the heritage of the American Declaration
of Independence, leaving the Creator out. We are “endowed with”, but do not know by whom.
That is the compromise that was accepted.

Furthermore, according to the Universal Declaration we should act towards one another in a
“spirit of brotherhood”. In the simplified version this is replaced by “in a friendly manner”. In the
discrimination sensitive version, we find “in a spirit of solidarity”.

Once again, we have to ask if those differences matter. And, if yes, what do they tell us about
our conception of “universalism”? What is our real and reliable starting point?

It is clear why the “spirit of brotherhood” was replaced by “spirit of solidarity”. Based on the idea
that language shapes consciousness we see in many countries the emergence of what is
understood to be a discrimination-sensitive approach to language. The word “brotherhood” has
therefore become suspicious – isn’t it the expression of a male-dominated world view? So, it is
replaced by “solidarity”, a word that seems to be neutral, acceptable to all and replacing a
wrong concept.

But is that true?

First, this male-dominated world view might be found in some languages, but not in all. My
Japanese colleague for example explained to me that the word used in Japanese for
“brotherhood” comprises brothers and sisters. Second, most obviously, the notion of “brother”
is different from “friend”. The latter we are free to choose, the first is “given” to us. Brothers have
the same parents. So, the word describes a much more exclusive and intense relationship.

But what is even more important, the replacement of the word cuts the historical roots. The spirit
of “brotherhood” leads us back to the French Revolution. We remember the triad: liberté,
égalité, fraternité.

If we replace “brotherhood” by “solidarity” we choose a completely different tradition. “Solidarity”
comes from the catholic social doctrine and the workers’ movements; it denotes the solidarity
between specific groups in society; it includes some and excludes others.

It is true, though, that while we take the English words as a basis, we have to acknowledge that
important concepts of living-together developed in other regions of the world were not
sufficiently taken into account while elaborating the Universal Declaration. I want to cite one
beautiful example that I have found in Mary-Ann Glendon’s wonderful little book A World Made
New. There she explains that when working on the first article the drafters wanted to add to the
European idea of “reason” the Chinese idea of “rén”. This is a basic concept of Confucianism
describing human beings as always related to one another. Yet, they did not find an adequate
notion in European languages and replaced it by “conscience” – which is something quite
different.

So, we admit, while the text of the UDHR integrates different traditions of the world, it expresses
and summarizes them in the words, concepts and notions coined by the Enlightenment. Or, in
other parts of the UDHR, in the words concepts and notions coined by the workers’ movements
in the 19th century, e.g. “just and favourable conditions of work” or “reasonable limitation of
working hours and periodic holidays with pay”.